State v. Howard

343 S.E.2d 538, 317 N.C. 140, 1986 N.C. LEXIS 2390

Opinion

PER CURIAM.

Defendant was tried and convicted pursuant to N.C.G.S. § 14-27.2 of rape of a “child under the age of 13 years” upon a bill of indictment which alleged that the offense occurred on 15 February 1983. This statute was amended effective 1 October 1983 by substituting “a child under the age of 13 years” for “a child of the age of 12 years or less.” At the time of this alleged offense, the prior statute controlled. The bill of indictment in this case, returned 22 July 1985, although a valid indictment for a rape occurring after 1 October 1983, did not allege a criminal offense for a rape allegedly occurring before the amendment to the statute, 1 October 1983. Therefore, the trial court did not have subject matter jurisdiction and the judgment entered must be arrested. The state may seek an indictment of defendant based upon the statute in effect on 15 February 1983.

Judgment arrested.